Article 63-A and 17th Amendment: Hafeez Pirzada explains hypothetical situation

In an exclusive interview with Aaj TV on Saturday, Abdul Hafeez Pirzada, a senior constitutional lawyer of repute, explained a hypothetical situation where Article 63-A of the constitution and the 17th Amendment apply.
He said that Amin Fahim was the leader of PPPP registered with the Election Commission and any defection or action contrary to directive of the Parliamentary Party could lead to disqualification of the violators.
Q. What steps will be taken for formation of the government and who will be invited to form the government?
A. The elections, recently concluded, were held on the behest of Pakistan Peoples Party (Parliamentarians) and only PPPP is registered with the Election Commission of Pakistan. Further the election symbol of Arrow (Tir) was allocated to the party only at the request of that party's Secretary General (or the General Secretary). Therefore, according to Article 63-A, the party which is relevant in the National Assembly at the moment, is the Pakistan Peoples Party (Parliamentarians) whose Chairman is Mr Makhdoom Amin Fahim.
Q. If a person elected on PPPP ticket, votes at the behest of some other person, what will be the constitutional implications of that action?
A. The constitutional position is this: According to Article 63-A, which was amended through the 17th Amendment, the ground for disqualification is defection. Defection means that: you leave a party on whose ticket you have been elected; a member elected on the Party's ticket has to resign or tenders resignation or joins any other political party, votes or abstains from voting, or votes against the directives of the Parliamentary Party in the House, and goes against the directives of the Parliamentary Party in relation to the selection of the Prime Minister or the Chief Minister or in the balloting for a vote of confidence or a vote of 'non confidence' brought into the Parliament, or goes against the parliamentary party on any Money Bill, then in such a case the leader of the Parliamentary Party can declare that the person has defected from the party, meaning that he has separated from the party. Such a declaration will be made by the head of the party and the decision will be made by the party. The head of the party has an obligation before making such a declaration to issue a 'show cause notice' to that member and give him an opportunity to explain why a declaration should not be issued against him, because this is a principle of natural justice. When this declaration is made by the head of the party under clause-1, then after the declaration the speaker of the National Assembly, or the speaker of the Provincial Assembly or the Chairman of the Senate (as the case maybe) is duty bound to refer that declaration within 2 days to the Chief Election Commissioner. And the Chief Election Commissioner will present this declaration before the Election Commission. Then the Election Commission will decide within 30 days whether the member concerned has defected that is left the party or not.
Q. There is no restriction during that period. If following the elections, but before the formation of the government, some one tries to disturb the party, then what is the constitutional position in such a case?
A. Well, the democratic process is that if the political party registered with the Election Commission, has the power under its constitution to change the leadership then it can be changed. But this will be justiciable Question, and this is not some ordinary question. It will have far-reaching consequences. Therefore I say that whatever decisions are to be made, should be made after serious deliberations. God Almighty has given this country an opportunity, and we are again setting out on the rails of democracy. There was an instance when a Parliamentary Party was founded in 2002, and defection took place even at that time; however the law for defection was not in force at that time when the Patriots seceded from the party. But when the 17th Amendment was made a part of the constitution and the Presidential Order No 3 was changed, then this restriction came about that if you violate the mandate of your party you may lose your seat. If you wish to consolidate the party, then it will be better to make collective decisions. These should not be made on individual basis. This is not some body's feudal property, nor is it an empire of an individual. These are not any succession prerogative rights. This is a people's representation. This is the representation of 160 million citizens, this is a common men's representation! Therefore, whatever decisions are made, should be made according to the Party's constitution. We are only having a general discussion at the moment, and no problem has surfaced before us. So it is an abstract discussion meaning that there is no situation existing at present to which Article 63-A applies.
Recently I issued a legal notice on behalf of Makhdoom Saheb to Khwaja Asif. In that notice, the objection raised by me, at the instructions of Makhdoom Saheb, was the same, that please do not subvert the discretionary rights of the elected members of parliament, so that whatever government comes into power, comes with a moral authority. A constitutional authority cannot be separate from a moral authority, nor can any law or any constitution go against a moral authority. The constitution can never promote immorality.